INDERDEO SAH Vs. DHRAMDEO MAHTO

JUDGEMENT

(1.) This revision application is directed against an order dated the 19th March, 1979 of the learned Munsif, Arrah, rejecting the petition of the plaintiff-petitioner dated the 17th March, 1979, praying to examine him as a witness in the case.

(2.) The plaintiff has filed a suit for eviction of the defendants and the 9th March, 1979, was the date fixed for examining the witnesses on behalf of the plaintiff, on which date 3 witnesses on his behalf were examined. On the next date, i.e., the 10th March, 1979, two more witnesses on behalf of the plaintiff were examined and the suit was adjourned to the 16th March, 1979. On the 17th March, 1979, the plaintiff filed a petition under Order XVIII, Rule 3A of the Code of Civil Procedure (hereinafter referred to as the Code), stating that on the 9th March, 1979, he was suffering from dysentery and could not come to court and, therefore, was not examined, and, as his evidence was essential in the case, he may be permitted to be examined as a witness. The defendants filed a rejoinder, challenging the allegation of the plaintiff. The learned Munsif, on an interpretation of the provisions of Order XVIII Rule 3-A of the Code, came to the conclusion that unless a petition by the plaintiff was filed for permission to be examined as a witness later than his other witnesses, he could not be permitted to be examined as a witness. The Munsif did not go into the question of truth or otherwise of the plaintiff's plea that he was ill.

(3.) Mr. Raghubansh Singh, learned Counsel appearing on behalf of the plaintiff-petitioner, has urged that the learned Munsif has taken too narrow a view of Rule 3-A of Order XVIII of the Code, which is a new provision and that the said provision does not prescribe any such limitation as placed on it by the learned Munsif. Learned Counsel has relied on a Bench decision of this Court in the case of Rameshwar Sharma v. Sarju Prasad (1979 BBCJ 637), in support of his contention.